Supreme Court takes up Trump administration's plan to ask about citizenship in census

Ricky Carioti / The Washington Post

The Supreme Court of the United States.

The Supreme Court of the United States.

(Ricky Carioti / The Washington Post)

Robert BarnesThe Washington Post

The Supreme Court added a politically explosive case to its low-profile docket Friday, agreeing to decide by the end of June whether the Trump administration can add a question about citizenship to the 2020 Census form sent to every American household.

The census hasn't asked the question of each household since 1950, and a federal judge last month stopped the Commerce Department from adding it to the upcoming count. He questioned the motives of Commerce Secretary Wilbur Ross, and said the secretary broke a "veritable smorgasbord" of federal rules by overriding the advice of career officials.

Those opposed to the question argue the census response rate will likely fall if households are asked whether undocumented immigrants are present, and make less accurate the once-a-decade "actual Enumeration" of the population required by the Constitution.

Because the administration said it needs to know by the end of June whether the census form can contain the question, the court bypassed its usual procedures to accept the case. The justices will directly review the 227-page opinion handed down by U.S. District Judge Jesse Furman of New York, rather than require it first to go through the U.S. Court of Appeals for the 2nd Circuit.

The Trump administration, as well as the 18 states, local governments and others challenging Ross's decision, told the court that the decision was so important it warranted exceptional treatment.

As New York, the lead challenger, said in its brief to the court:

"The enumeration affects the apportionment of representatives to Congress among the states, the allocation of electors to the electoral college, the division of congressional districts within each state, the apportionment of state and local legislative seats, and the distribution of hundreds of billions of dollars of federal funding."

Solicitor General Noel Francisco told the court that Furman had exceeded his authority.

The district court took the "unprecedented step of striking a demographic question from the decennial census and thereby preventing the Secretary of Commerce from exercising his delegated powers" to decide how the census is conducted, Francisco's brief tells the court.

"Indeed, to the government's knowledge, this is the first time the judiciary has ever dictated the contents of the decennial census questionnaire."

But Furman, and the states challenging Ross's decision, said that Congress has placed restrictions on what kind of information the secretary may seek, and the process for implementing it.

Ross "failed to consider several important aspects of the problem; alternately ignored, cherry-picked, or badly misconstrued the evidence in the record before him; acted irrationally both in light of that evidence and his own stated decisional criteria; and failed to justify significant departures from past policies and practices," Furman wrote.

Ross announced the decision to add the question in March 2018. He said at the time that he was responding to a request from the Department of Justice, which said the information was needed to enforce laws protecting minority voting rights.

But later emails and depositions in the lawsuit showed that Ross had discussed the issue with White House officials urging a crackdown on undocumented immigrants. Some showed that he initiated contact with Justice Department officials, not the other way around.

The New York brief says Ross acted directly against the advice of career Census Bureau experts.

"For at least the last forty years, the bureau has vigorously opposed adding any such question based on its concern that doing so 'will inevitably jeopardize the overall accuracy of the population count' by depressing response rates from certain populations, including noncitizens and immigrants," New York Attorney General Letitia James.